MARY ANN ALLAS PEREIRA, formerly known as MARY ANN TEODORO ALLAS, the administratrix of the estate of BABY JANE TEODORO ALLAS, deceased v. JAMIL BUSHRA

DCEO 11/2020

[2026] HKDC 1148

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO 11 OF 2020

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ASSESSMENT OF DAMAGES

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A.  INTRODUCTION

1.  With the assistance of the Equal Opportunities Commission (the “EOC”), Baby Jane Teodoro Allas (the “Deceased”) commenced this action on 22 December 2020. She claimed damages and other reliefs against the Respondent under sections 6(a) and 11(2)(c) of the Disability Discrimination Ordinance (Cap 487) (the “DDO”).

2.  The Deceased tragically passed away in the Philippines on 27 March 2021. Pursuant to Letters of Administration dated 1 December 2023, the Claimant (the Deceased’s younger sister) and Ms Jessica Carolyn Cutrera Papadopoulos (“Ms Cutrera”) were appointed as co-administratrixes of the Deceased’s estate in Hong Kong. On 25 January 2024, the Claimant was granted the right to carry on the present action in the Deceased’s place.

3.  The Notice of Claim and other documents were served on the Respondent via substituted service. The Respondent did not file a notice of response or participate in these proceedings. Upon the Claimant abandoning her claims for a declaration and a written apology, interlocutory judgment was entered against the Respondent on 1 August 2024, with damages to be assessed.

4.  This is an assessment of damages of the Claimant’s claim for: (a) loss of income, (b) compensation for injury to feelings, and (c) medical expenses. The Respondent was absent from the hearing.

B.  APPLICABLE LEGAL PRINCIPLES

5.  Sections 6(a) and 11(2)(c) of the DDO make it unlawful for an employer to discriminate against a person with a disability by treating them less favourably, dismissing them, or subjecting them to any other detriment.

6.  Under section 6(a) of the DDO:

“A person discriminates against another person in any circumstances relevant for the purposes of any provision of this Ordinance if—

(a)  on the ground of that other person’s disability he treats him less favourably than he treats or would treat a person without a disability; …”

7.  Section 11(2)(c) of the DDO provides that:

“It is unlawful for the employer, in the case of a person with a disability employed by him at an establishment in Hong Kong, to discriminate against that person—

…

(c)  by dismissing that person, or subjecting him to any other detriment.”

8.  Section 72 of the DDO grants the District Court jurisdiction to hear such claims and award damages. It provides that:

“(1) A claim by or on behalf of any person (the claimant) that another person (the respondent)—

(a) has committed an act of discrimination against the claimant which is unlawful by virtue of Part 3 or 4;

…

may be made the subject of civil proceedings in like manner as any other claim in tort.

…

(3) Proceedings under subsection (1) shall be brought in the District Court but all such remedies shall be obtainable in such proceedings as, apart from this subsection and section 71(1), would be obtainable in the Court of First Instance.

(4) Without limiting the generality of the power conferred by subsection (3), the District Court may—

(a) make a declaration that the respondent has engaged in conduct, or committed an act, that is unlawful under this Ordinance, and order that the respondent shall not repeat or continue such unlawful conduct or act;

…

(e) order that the respondent shall pay to the claimant damages by way of compensation for any loss or damage suffered by reason of the respondent’s conduct or act;

(f) order that the respondent shall pay to the claimant punitive or exemplary damages; …

(4A) By virtue of this subsection and notwithstanding any law, the District Court shall have jurisdiction to hear and determine any proceedings under subsection (1) and shall have all such powers as are necessary or expedient for it to have in order to provide, grant or make any remedy, injunction or order mentioned in this Ordinance.

(5) For the avoidance of doubt, it is hereby declared that damages in respect of an unlawful act of discrimination or harassment, or an act which is unlawful under section 46, may include compensation for injury to feelings whether or not they include compensation under any other head.”

9.  In 袁慧嫺 對 南方安老事務有限公司 [2005] 2 HKLRD 277, the Court of Appeal held, at §§38 and 40, that in respect of section 76 the Sex Discrimination Ordinance (Cap 480) (the “SDO”) (which is the SDO equivalent to section 72 of the DDO), the remedies obtained for sex discrimination must relate to the conduct or act that is unlawful under the SDO. Other unlawful acts should not be a relevant consideration.

10.  The same principle should apply to section 72 of the DDO. When determining appropriate remedies, the Court will only consider the Respondent’s conduct or act that is unlawful under the DDO, disregarding any other acts which may otherwise be unlawful.

C.  THE CLAIMANT’S CASE

11.  At the hearing, the Claimant abandoned the claim for exemplary damages.

12.  Because the Respondent defaulted in giving notice of intention to defend, she is taken to have admitted all allegations in the Amended Notice of Claim dated 4 February 2024: see Hong Kong Civil Procedure 2026, §13/0/10.

13.  The Claimant filed a hearsay notice to adduce statements made by the Deceased to the EOC, as well as statements from a documentary titled “Price of Justice”, which contains various interviews with the Deceased, the Claimant and Ms Cutrera conducted in the period from March to August 2019 (the “Documentary”).

14.  I will appropriately weigh the hearsay evidence, considering the factors in section 49 of the Evidence Ordinance (Cap 8) and the totality of evidence, and assess it against the factual evidence of the Claimant and Ms Cutrera.

15.  When weighing the statements made by the Deceased in the Documentary, I note it may be edited and was produced specifically to highlight the hurdles faced by foreign domestic helpers seeking justice for alleged wrongful terminations.

16.  The Claimant’s case as pleaded in the Amended Notice of Claim can be summarised as follows:-

(1)  Pursuant to a contract dated 10 September 2017 (the “Contract”), the Deceased commenced a two-year domestic helper contract with the Respondent as a domestic helper on 12 November 2017. It was the Deceased’s first time working as a domestic helper in Hong Kong.

(2)  On 20 January 2019, the Deceased was provisionally diagnosed with cervical cancer. She was recommended sick leave from 25 January 2019 to 14 February 2019 (the “Sick Leave”), during which she stayed with the Claimant with the Respondent’s permission. The Respondent’s family was kept informed of her condition and hospital admissions.

(3)  On 14 February 2019, the diagnosis of stage IIIB cervical cancer was confirmed. The doctor advised the Deceased to attend Tuen Mun Hospital for a further appointment on the following day and to receive treatment as soon as possible.

(4)  The Deceased was shocked and overwhelmed. She returned to the Claimant’s home to discuss with the Claimant. Later that evening, the Respondent enquired with the Deceased as to her whereabout and instructed her to return to the Respondent’s home after her medical appointment on the following day.

(5)  When the Deceased returned to the Respondent’s home on 15 February 2019, the Respondent’s father asked the Deceased to obtain a medical certificate confirming that she was fit to work (“Fitness Certificate”).

(6)  On 16 February 2019, the Deceased was instructed to resume her work duties in the early morning. However, she felt unwell and was admitted to Pok Oi Hospital.

(7)  On 17 February 2019, whilst the Deceased was in Pok Oi Hospital, the Respondent’s father again requested the Deceased through WhatsApp to obtain a Fitness Certificate.

(8)  The Deceased was discharged from Pok Oi Hospital on the same day and was recommended for sick leave from 16 to 18 February 2019.

(9)  On 17 February 2019, the Deceased returned to the Respondent’s home. Upon her return, the Respondent’s father demanded a Fitness Certificate and became very angry when the Deceased provided him with a sick leave certificate instead.

(10)  Later that day, the Respondent handed the Deceased a termination letter dated 17 February 2019 (the “Termination Letter”), terminating the Deceased’s employment with effect from 19 February 2019. The Termination Letter states that:

“Reason(s) for termination (if any): Diagnosed with cervical cancer

• Admitted in Tuen Mun Hospital from 25 January 2019 to 27 January 2019

• Recommended sick leave from 25 January 2019 to 14 February 2019

• Despite our insistence, you stayed in your sister’s house during your sick leave. You were out of control and we repeatedly had to ask your sister for your whereabouts.

• You informed us you will return to our house on 14 February 2019. We contacted you for the entire day but no avail. Then, we contacted your sister at around 8.00 pm and only then you replied my call and informed me that you went to the Tuen Mun Hospital and you are diagnosed with ‘Cervical Cancer’

Given your medical conditions. I am no longer able to continue your employment effective from 19 February 2019.”

(11)  The Respondent asked the Deceased to sign the Termination Letter and another letter which states that certain termination payments were made to the Deceased. The Deceased refused to sign both letters. The Respondent said that she would file the Termination Letter with the Immigration Department and the Deceased’s employment would be terminated on 19 February 2019.

(12)  The Deceased left the Respondent’s home on 19 February 2019. She returned to the Philippines on 13 September 2019 after undergoing a radical hysterectomy in Hong Kong.

17.  The Claimant called herself and Ms Cutrera as witnesses, both of whom the Court finds honest and reliable. Their evidence is accepted in its entirely.

18.  The Claimant and Ms Cutrera lived with the Deceased during the Sick Leave and after the latter’s employment was terminated by the Respondent. They had personal knowledge of the Deceased’s physical and emotional state during that period.

19.  They gave evidence that Ms Cutrera and the Hong Kong Adventist Hospital Foundation (the “Adventist Foundation”) had provided financial, medical and other assistance to the Deceased for her to stay and receive private medical treatment in Hong Kong. Ms Cutrera also raised funds through an online campaign and obtained donations for the Deceased. I accept Ms Cutrera’s evidence that there was a consensus between the Deceased and herself that any medical expenses recovered from the Respondent would be repaid to the Adventist Foundation so as to help other patients in need.

20.  I also accept the Claimant’s and Ms Cutrera’s evidence that due to the medical condition explicitly stated in the Termination Letter, an employment agency advised that the Deceased was highly unlikely to obtain a new work visa, despite Ms Cutrera’s wish to employ the Deceased.

21.  In a letter issued by Dr Lucy Lord, a specialist in obstetrics and gynecology, dated 3 December 2019 (“Dr Lord’s Letter”), Dr Lord confirmed that the Deceased had been medically fit to perform her duties as a domestic helper despite her diagnosis.

D.  ANALYSIS

D1.  Loss of Income

22.  Under the Contract, the Deceased’s monthly salary was HK$4,310. There were no allegations of poor work performance, whether in the Termination Letter or other contemporaneous evidence. Dr Lord’s Letter also confirmed that the Deceased was medically fit to work.

23.  But for the unlawful discrimination, the Deceased would have continued working until the Contract expired on 11 November 2019. As explained above, the Deceased’s duty to mitigate was reasonably hindered by the explicit mention of her medical condition in the Termination Letter.

24.  In the premises, I accept the Claimant’s claim for the Deceased’s loss of income in the amount of HK$33,367, being her salaries for the period from 20 February 2019 to 11 November 2019 (ie 8 months and 23 days), totalling HK$37,677.74, less the one month’s salary in lieu of notice already paid.

D2.  Compensation for Injury to Feelings

25.  Following the Court of Appeal in 袁慧嫺 (supra), §47, the three bands of compensation for injury to feelings as set out in Vento v Chief Constable of West Yorkshire [2002] EWCA Civ 1871 should be adopted.

26.  I also follow the following guidance given by the English Court of Appeal in Vento (supra) and cited in Li Pui Ha v Wong So Kee Transportation Ltd [2014] 4 HKLRD 254, §16, on assessment of compensation for injury to feelings in discrimination cases:

“53. In Prison Service v Johnson [1997] ICR 275 Smith J reviewed the authorities on compensation for non-pecuniary loss and made a valuable summary of the general principles gathered from them. We would gratefully adopt that summary. Employment tribunals should have it in mind when carrying out this challenging exercise. In her judgment on behalf of the appeal tribunal Smith J said, at p 283:

‘(i) Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation at the tortfeasor’s conduct should not be allowed to inflate the award.

(ii) Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could, to use the phrase of Sir Thomas Bingham MR [in John v MGN Ltd [1997] QB 586, 611], be seen as the way to ‘untaxed riches’.

(iii) Awards should bear some broad general similarity to the range of awards in personal injury cases. We do not think that this should be done by reference to any particular type of personal injury award, rather to the whole range of such awards.

(iv) In exercising that discretion in assessing a sum, tribunals should remind themselves of the value in everyday life of the sum they have in mind. This may be done by reference to purchasing power or by reference to earnings.

(v) Finally, tribunals should bear in mind Sir Thomas Bingham’s reference to the need for public respect for the level of awards made.’

…

65. Employment tribunals and those who practise in them might find it helpful if this court were to identify three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric or similar personal injury.

(i) The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.

(ii) The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band.

(iii) Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.

66. There is, of course, within each band considerable flexibility, allowing tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case.”

27.  I agree with the Claimant that the updated Vento scale in 陳詠琴 對 第一流行鋼琴教室有限公司 [2025] 4 HKLRD 909, §11, which is uplifted in line with inflation in Hong Kong as measured by the Composite Consumer Price Index should be adopted, ie:

(1)  Top band: HK$285,000 – HK$475,000

(2)  Middle band: HK$95,000 – HK$285,000

(3)  Lowest band: HK$9,500 – HK$95,000

28.  I have considered the following authorities cited by the Claimant:

(1)  袁慧嫺 (supra);

(2)  陳詠琴 (supra);

(3)  Siu Kai Yuen v Maria College [2005] 2 HKLRD 775;

(4)  郭永新 對 羅容佳經營環球金屬塑膠製品廠 (unrep, DCEO 2/2007, 4 December 2008);

(5)  Ip Kai Sang v Federal Elite Ltd [2008] 2 HKLRD 563;

(6)  Li Pui Ha v Wong So Kee Transportation Ltd [2014] 4 HKLRD 254; and

(7)  秦秀清 對 長鴻鋁窗裝飾工程有限公司 [2020] 2 HKC 146.

29.  By reason of the following factors, I am of the view that the disability discrimination in the present action falls within the first half of the middle band mentioned in paragraph 27 above, but is more serious than the circumstances in 陳詠琴 (supra):

(1)  The act of discrimination was one-off.

(2)  During her employment, the Deceased had a good relationship with the Respondent and her family, and she had performed her duties competently.

(3)  The Deceased was suddenly dismissed just three days after receiving a life-threatening cancer diagnosis.

(4)  The dismissal must have been a heavy blow to the Deceased when she has already facing the shock and anxiety of having a life-threatening illness. Her injured feeling must have been substantial.

(5)  The Deceased had worked for 15 months for the Respondent and her family before her sudden dismissal. I accept that she must have felt betrayed, especially when she was already in a very vulnerable and distressed state.

(6)  I accept the Claimant’s evidence that the Deceased cried a lot, had trouble sleeping and eating and was nervous in the days following the dismissal.

(7)  As the sole breadwinner of her family (with 5 children at the ages between 7 to 16 and an elderly mother), the dismissal caused severe emotional distress and financial pressure to the Deceased.

(8)  The Respondent never apologised to the Deceased during her lifetime.

(9)  The explicit mention of the Deceased’s medical condition in the Termination Letter made it very difficult, if not impossible, for the Deceased to obtain a new work visa.

(10)  The dismissal rendered the Deceased’s work visa invalid after a two-week period and caused the loss of eligibility for subsidised public healthcare in Hong Kong. The Deceased was left in a grave financial state and with limited options for timely and affordable medical treatment.

30.  In the premises, I find the Claimant’s claim for HK$120,000 as compensation for injury to the Deceased’s feelings fair, reasonable and just. I therefore award such amount to the Claimant.

D3.  Medical Expenses

31.  Section 72(4)(e) of the DDO allows the Court to order the Respondent to pay to the Claimant damages by way of compensation for any loss or damage suffered by reason of the Respondent’s conduct or act.

32.  In Ma Bik Yung v Ko Chuen (2006) 9 HKCFAR 888, the Court of Final Appeal held in relation to remedies available under the DDO that:

“30. Before turning to s 72(4)(b) and the question of an order for an apology, a number of general points should be made on remedies available under the Ordinance. First, s 72(3) provides that all remedies that would be obtainable in the Court of First Instance of the High Court shall be obtainable in proceedings before the District Court under the Ordinance. Section 72(4) then sets out, without limiting the generality of the power in s 72(3), particular remedies which the District Court may grant. With these provisions, the District Court has a wide range of remedies at its disposal. Leaving aside the scope of s 72(4)(b) which is in issue in this appeal, the available remedies include mandatory orders that would be enforceable by contempt proceedings. For example, an order under s 72(4)(c) that the defendant shall employ or re-employ the plaintiff and an order under s 72(4)(d) that the defendant shall promote the plaintiff. The circumstances of the cases brought under the Ordinance would be of an infinite variety. With the wide range of available remedies, it is for the court to fashion the remedies that are appropriate for the case in question.

31. Secondly, at the stage when the court addresses the question of remedies, the court would have already concluded that the defendant had committed unlawful conduct under the Ordinance. In deciding on the remedy or the package of remedies that would be appropriate in the circumstances of the case, the court should consider the matter in the round and take a global approach.

32. Thirdly, we are in a new area of the law. As has been stated, by enacting anti-discrimination legislation such as the Ordinance, the community has condemned the conduct outlawed and the purpose of the legislation is to seek to eliminate discrimination and the prejudicial attitudes that may exist in society. It is important for the court to bear in mind that the remedies granted should ensure respect for the legislation and its purpose. In fashioning remedies, the court should be prepared, where necessary, to be innovative. At the same time, the court should be flexible and pragmatic in its approach to remedies.”

33.  Following the termination, the Deceased lost her eligibility for subsidised public healthcare in Hong Kong. Given the limited availability of medical treatment in the Deceased’s hometown and the price of medical treatment in major cities in the Philippines, it was reasonable for the Deceased to seek prompt private medical treatment in Hong Kong given her advanced cancer.

34.  In the premises, the Deceased’s additional medical expenses incurred in Hong Kong due to her dismissal are recoverable under section 72(4)(e) of the DDO.

35.  The Deceased had the good fortune of receiving generous and timely financial and medical support and assistance from the Adventist Foundation, Ms Cutrera and other donations received in her hour of need. Following Tang Kwong Chiu v Lee Fuk Yue [1980] HKLR 588, §§12-17, such financial assistance received by the Deceased as the object of benevolence or recipient of charity should be disregarded in assessing damages. In other words, such financial assistance should not be taken into account in the calculation of damages for medical expenses.

36.  The Claimant is therefore entitled to recover the difference between the private medical expenses incurred and what the Deceased would have paid under the public healthcare system.

37.  I accept the Claimant’s evidence, which is supported by medical receipts, that such difference is HK$98,286 (HK$103,086 less HK$4,800). I therefore award such amount as medical expenses.

E.  COSTS

38.  Under section 73C(3) of the District Court Ordinance (Cap 336) (“DCO”):

“Each party to any proceedings in the Court in the exercise of its jurisdiction under the Disability Discrimination Ordinance (Cap 487) shall bear its own costs unless the Court otherwise orders on the ground that—

(a) the proceedings were brought maliciously or frivolously; or

(b) there are special circumstances which warrant an award of costs.”

39.  The Respondent ignored the EOC’s conciliation efforts, failed to respond to pre-action settlement attempts, evaded service of court documents (she moved away from her old address and her sister refused to accept service on her behalf), and did not participate in the proceedings. Her uncooperative behaviour forced the Claimant to unnecessarily pursue this action to its conclusion, constituting “special circumstances” under section 73C(3)(b) of DCO which warrants an award of costs: see 陳詠琴 (supra), §16, and C v Hau Kar Kit [2023] HKDC 974, §§40-41.

40.  I therefore order the Respondent to pay the Claimant’s costs for these assessment proceedings.

F.  CONCLUSION

41.  The damages awarded to the Claimant are as follows:

(1)    Loss of income	$  33,367
(2)    Compensation for injury to feelings	$120,000
(3)    Medical expenses	$  98,286

42.  By reason of the above, I order that:

(1)  The Respondent do pay the Claimant:

(a)  $33,367 for loss of income;

(b)  $120,000 as compensation for injury to feelings; and

(c)  $98,286 for medical expenses.

(2)  The Claimant is entitled to interest on loss of earnings and medical expenses at half judgment rate from the date of the Deceased’s dismissal (ie 19 February 2019) to date of judgment, and thereafter at judgment rate until payment in full.

(3)  The Claimant is entitled to interest on compensation for injury to feelings at 2% per annum from the date of the Notice of Claim (ie 22 December 2020) to the date of judgment, and thereafter at judgment rate until payment in full.

(4)  The Respondent do pay the Claimant’s costs of the assessment of damages proceedings, including all costs reserved, to be taxed if not agreed.